Abstract

We appreciate the opportunity to present some further thoughts on the libertarian right to test initially proposed by Loi, and hope these additional comments will further inform debate about this critical emerging technology. Loi’s important argument is that individuals possess a prima facie libertarian right to test their genomes and that regulatory intervention restricting genetic testing must be justified by those proposing regulation. Our position is that the onus of justifying regulation is reversed. The risk to others whose genomic information is shared with the individual is potentially significant enough to warrant prima facie regulatory intervention, including protection against misuse of genetic information derived from those tests, not just against the individual tested but also against those who for reasons of common familial ancestry are also susceptible to misuse. Testing an individual’s genome does not merely reveal information about that individual; it reveals, or renders reasonably inferable, information about the genomes of close relatives due to the commonality of genomic DNA within families. Such commonality is not merely ‘incidentally identical’: it is instead inevitable given the shared nature of genomic DNA sequences within families. ‘Incidental identity’ may appropriately describe the statistical possibility of two unrelated individuals in the human …